In today’s video, we talk more about legal risk mitigation for physicians, chiropractors, and other clinicians who want to do health coaching.

Hi, I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare industry clients just like you navigate healthcare and FDA legal issues so you can launch, or continue to scale, your health and wellness product or service.

We talked before about a hybrid model, in which the physician or chiropractor or psychologist or other clinician serves in a clinical role, providing healthcare services to their patients as a licensee, via telemedicine/telehealth; and then has a separate website and practice in which they style themselves as a health coach.

And in the previous video, we offered a couple of risk mitigation strategies—for example, if licensed as an MD, DC, or otherwise, put a disclaimer on your consent or disclosure forms as well as your website which states that even though you hold the licensure in a particular state, State X, you are not licensed in other States and in those States you intend to function as a health coach, and to that role as a health coach, you are going to assert that it does not involve diagnosis or treatment of disease.

I call this, the “Jedi Mind trick defense.”  It goes like this (repeat after me): these droids are not the ones you’re looking for.

It’s a Jedi Mind trick because you are asserting a reality and by so asserting it, you’re assuming that the regulators will buy it.  Remember, as lawyers we cannot provide a guarantee that you will never come under the watchful eye of the Emperor—he has a long gaze, he has spent a lot of years under the Dark Side of the Force—so we can’t eliminate him. Well at some point we will, but meanwhile we can provide the light saber of interpretation of statutes and regulations and the good magic of risk mitigation strategies and language.

There, you made it through a Star Wars metaphor and I even got to the end of the movie.

Recently, we came across the example of a chiropractor who wanted to do functional medicine, and this is pretty typical.  This one is a little more difficult, because it presents a legal issue known as “scope of practice.” Which is a little different, it goes like this:

In a nutshell, practitioners who are not license MDs can only function within a certain limited scope of professional practice, which is typically defined by their licensing statute or regulations.  For example, in an early case, one court said that when a chiropractor examined the patient’s elbow, this went beyond their very narrow scope of practice in that state which was confined to spinal manipulation.

So that’s a narrow ruling, but obviously a first step here is to understand your scope of practice.

There are scope of practice issues inherent in being a licensed healthcare professional other than a DO or an MD, it just comes with the territory and saying on your website that you practice “functional medicine” if you’re not an MD or DO can be tricky.  We can talk about these in more drilled down during a Legal Strategy Session—please see our website for details about how that would work.

For now, the question our chiropractor asked is whether they are better or worse off offering the functional health services under their license as a chiropractor, or under the guise of health coaching.  This is a fairly nuanced question because it can depend on so many factors, including the exact services the practitioner wants to offer and how they describe them.

There are risks either way, since exceeding your scope of licensed practice can put you at risk for a charge of unlicensed practice of “medicine.”  In general, I would say this for this video: it’s best not to get too aggressive in terms of appropriating the term “medicine” when you’re practicing under a license that suggests that what you do is narrower than “medicine” and the reason for this go way back in history.  The license doesn’t protect you here, it actually limits what you can do, so don’t fall into that trap.

Some clients have two websites, one for their professional clinical practice—let’s say, for example, psychiatry or geriatric medicine; and another for their coaching practice.  Some have one website which is about them personally, but that website has two doors, one a portal to their professional clinical practice—say for psychiatry patients in-state who need regular visits, possibly medication management; and another to their coaching practice, which might be more holistic and focus more on managing and navigating broader health and life issues.

Thanks for watching. Here’s to the success of your healthcare venture, we look forward to speaking with you soon.